Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 94th General Assembly A Bill
3 Regular Session, 2023 SENATE BILL 445
4
5 By: Senators M. Johnson, J. Boyd, J. Bryant, Caldwell, A. Clark, J. Dotson, J. English, Flippo, K.
6 Hammer, Hester, B. Johnson, M. McKee, J. Payton, J. Petty, Rice, Stone, G. Stubblefield, D. Wallace
7 By: Representatives M. Brown, Brooks, B. McKenzie, Ray
8
9 For An Act To Be Entitled
10 AN ACT TO AMEND THE PROVISIONS OF ARKANSAS
11 CONSTITUTION, AMENDMENTS 91 AND 101, TO PROVIDE THAT
12 PROCEEDS GENERATED UNDER ARKANSAS CONSTITUTION,
13 AMENDMENT 91, MAY BE APPLIED TO MULTILANE HIGHWAY
14 IMPROVEMENTS; TO AMEND ARKANSAS CONSTITUTION,
15 AMENDMENTS 91 AND 101, PURSUANT TO THE AUTHORITY
16 GRANTED BY ARKANSAS CONSTITUTION, ARTICLE 5, § 1; TO
17 DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES.
18
19
20 Subtitle
21 TO AMEND THE PROVISIONS OF ARKANSAS
22 CONSTITUTION, AMENDMENTS 91 AND 101, TO
23 PROVIDE THAT PROCEEDS MAY BE APPLIED TO
24 MULTILANE HIGHWAY IMPROVEMENTS; AND TO
25 DECLARE AN EMERGENCY.
26
27
28 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
29
30 SECTION 1. DO NOT CODIFY. LEGISLATIVE INTENT.
31 (a) The General Assembly finds:
32 (1) Arkansas Constitution, Article 5, § 1, provides that "[n]o
33 measure approved by a vote of the people shall be amended or repealed by the
34 General Assembly. . . except upon a yea and nay vote on roll call of two-
35 thirds of all the members elected to each house of the General Assembly. .
36 .";
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1 (2) Arkansas Constitution, Article 5, § 1, defines "measure" to
2 include any bill, law, resolution, ordinance, charter, constitutional
3 amendment or legislative proposal or enactment of any character;
4 (3) The plain language of the definition of "measure" in
5 Arkansas Constitution, Article 5, § 1, clearly includes amendments to the
6 Arkansas Constitution, meaning that the General Assembly may amend amendments
7 to the Arkansas Constitution with a two-thirds vote of each house;
8 (4) Despite observing that the definition of "measure" in
9 Arkansas Constitution, Article 5, § 1 includes "constitutional amendment(s)
10 'or legislative proposals of any character'", the Supreme Court in Arkansas
11 Game and Fish Commission v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951),
12 declined to construe the language literally and held that the General
13 Assembly lacked the power to amend or repeal amendments to the Arkansas
14 Constitution by a two-thirds vote of each house;
15 (5) In Board of Trustees of the University of Arkansas v.
16 Andrews, 2018 Ark. 12 (2018), the Supreme Court overturned years of precedent
17 by holding that the General Assembly cannot waive by law the state's
18 sovereign immunity granted by Arkansas Constitution, Article 5, § 20;
19 (6) In reaching its decision in Andrews, supra, the Supreme
20 Court held that the language of Arkansas Constitution, Article 5, § 20,
21 should be interpreted "precisely as it reads";
22 (7) In Buonauito v. Gibson, 2020 Ark. 352, the Arkansas Supreme
23 Court noted that the phrase "four-lane highway" as used in Arkansas
24 Constitution, Amendment 91, had been "given a specific meaning that is plain
25 and unambiguous" and thus funds under Arkansas Constitution, Amendment 91,
26 could not be used to improve six-lane portions of interstate highways; and
27 (8) An interpretation of Arkansas Constitution, Article 5, § 1,
28 "precisely as it reads" clearly leads to the conclusion that the General
29 Assembly may amend all measures, including constitutional amendments, by a
30 two-thirds vote of each house, as the term "measure" has been given a plain
31 and unambiguous definition in Arkansas Constitution, Article 5, § 1.
32 (b) By the passage of this act, the General Assembly expresses its
33 belief that, upon consideration of this act using the standard of review
34 established in Andrews, supra, the Supreme Court will:
35 (1) Interpret Arkansas Constitution, Article 5, § 1, precisely
36 as it reads in consideration of its plain and unambiguous language;
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1 (2) Overturn its decision in Edgmon, supra, as inconsistent with
2 its holding in Andrews, supra, and Buonauito, supra; and
3 (3) Uphold the constitutional authority of the General Assembly
4 under Arkansas Constitution, Article 5, § 1, to amend or repeal amendments to
5 the Arkansas Constitution by a two-thirds vote of each house.
6
7 SECTION 2. Pursuant to the authority granted by Arkansas Constitution,
8 Article 5, § 1, Arkansas Constitution, Amendment 91, §§ 1 and 2 are amended
9 to read as follows:
10 § 1. Intent.
11 The people of the State of Arkansas find that:
12 (a) The state has an outdated and inadequate system of highway
13 funding that is unable to meet the severe and pressing needs to maintain and
14 improve the state's system of state highways, county roads, and city streets;
15 (b) Increasing investment in the state highway system, county
16 roads, and city streets will create jobs, aid in economic development,
17 improve quality of life, and provide additional transportation
18 infrastructure, including specifically, a four-lane multilane highway
19 construction plan designed to connect all regions of the state; and
20 (c) To provide additional funding for the state's four-lane
21 multilane highway system, county roads, and city streets, this amendment
22 levies a temporary sales and use tax and authorizes general obligation
23 highway construction and improvement bonds for the state's four-lane
24 multilane highway system.
25
26 § 2. Definitions.
27 As used in this amendment:
28 (a) “Bonds” means the State of Arkansas General Obligation Four-
29 Lane Multilane Highway Construction and Improvement Bonds as authorized in
30 this amendment;
31 (b) “Chairman” means the chair of the Arkansas Highway
32 Commission;
33 (c) “Chief fiscal officer” means the Director of the Department
34 of Finance and Administration;
35 (d) “Commission” means the State Highway Commission;
36 (e) “Debt service” means all amounts required for the payment of
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1 principal of, interest on, and premium, if any, due with respect to the bonds
2 in any fiscal year, along with all associated costs, including without
3 limitation the fees and costs of paying agents and trustees, and remarketing
4 agent fees;
5 (f) “Designated tax revenues” means:
6 (1) Taxes collected under this amendment and apportioned
7 to the Arkansas State Highway and Transportation Department Fund under § 27-
8 70-206 collected over an approximate ten-year period; and
9 (2) Other fees or taxes that are dedicated to the
10 repayment of the bonds; and
11 (g)(1) “Four-lane Multilane highway improvements” means
12 construction of and improvements to:
13 (A) Four-lane Multilane roadways;
14 (B) Bridges;
15 (C) Tunnels;
16 (D) Engineering;
17 (E) Rights-of-way; and
18 (F) Other related capital improvements and
19 facilities appurtenant or pertaining thereto, including costs of rights-of-
20 way acquisition and utility adjustments.
21 (2) “Four-lane Multilane highway improvements” also means
22 the maintenance of four-lane multilane highway improvements constructed with
23 proceeds of the bonds.
24
25 SECTION 3. Pursuant to the authority granted by Arkansas Constitution,
26 Article 5, § 1, Arkansas Constitution, Amendment 91, § 4(a), concerning the
27 authorization and purpose of general obligation bonds under Arkansas
28 Constitution, Amendment 91, is amended to read as follows:
29 (a) The State Highway Commission may issue State of Arkansas Four-Lane
30 Multilane Highway Construction and Improvement General Obligation Bonds
31 (‘bonds') in a total principal amount not to exceed one billion, three
32 hundred million dollars ($1,300,000,000) for the purpose of:
33 (1) Accelerating four-lane multilane highway improvements in
34 progress or scheduled as of January 1, 2011;
35 (2) Funding new four-lane multilane highway improvements not in
36 progress or scheduled as of January 1, 2011;
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1 (3) Providing matching funds in connection with federal highway
2 programs for four-lane multilane highway improvements; and
3 (4) Paying the costs of issuance of the bonds.
4
5 SECTION 4. Pursuant to the authority granted by Arkansas Constitution,
6 Article 5, § 1, Arkansas Constitution, Amendment 91, § 5, is amended to read
7 as follows:
8 § 5. Use of proceeds.
9 (a) There is established on the books of the Treasurer of State,
10 Auditor of State, and the chief fiscal officer of the State a special account
11 within the State Highway and Transportation Department Fund to be designated
12 as the Arkansas Four-Lane Multilane Highway Construction and Improvement Bond
13 Account.
14 (b)(1) On the last day of each month, the Treasurer of State, after
15 making the deductions required from the net special revenues as set out in §
16 19-5-203(b)(1), shall transfer the revenues derived by the one-half cent
17 (0.5¢) taxes levied under this amendment to the State Highway and
18 Transportation Department Fund, the County Aid Fund and the Municipal Aid
19 Fund in the percentages provided in the Arkansas Highway Revenue Distribution
20 Law, § 27-70-201 and § 27-70-206.
21 (2) The proceeds of the excise taxes transferred to the State
22 Highway and Transportation Department Fund shall be set aside and transferred
23 to the Arkansas Four-Lane Multilane Highway Construction and Improvement Bond
24 Account and used for the purposes provided for in this amendment.
25 (3) The tax revenues accruing from this amendment shall not be
26 designated as special revenues for deposit to the Arkansas Department of
27 Aeronautics Fund under § 27-115-110.
28
29 SECTION 5. Pursuant to the authority granted by Arkansas Constitution,
30 Article 5, § 1, Arkansas Constitution, Amendment 91, § 7, is amended to read
31 as follows:
32 § 7. Effective Date - Use of funds.
33 (a) The taxes levied by this amendment shall not become effective
34 until after a majority of the qualified electors of the state voting on the
35 question approve the issuance of Four-Lane Multilane Highway Construction and
36 Improvement General Obligation Bonds to be repaid in part by the taxes levied
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1 by this amendment and deposited to the Arkansas Four-Lane Multilane Highway
2 Construction and Improvement Bond Account in the State Highway and
3 Transportation Department Fund.
4 (b) If the tax levies and the issuance of the bonds are approved, the
5 effective date of the temporary taxes levied by this amendment shall be July
6 1, 2013.
7 (c) Taxes levied by this amendment may be used for the purposes
8 provided for in this amendment, including without limitation the funding of
9 new multilane highway improvements, regardless of when the taxes were
10 collected.
11
12 SECTION 6. Pursuant to the authority granted by Arkansas Constitution,
13 Article 5, § 1, Arkansas Constitution, Amendment 91, § 10(2), concerning the
14 procedures for issuing bonds under Arkansas Constitution, Amendment 91, is
15 amended to read as follows:
16 (2) The commission shall present a report to the Governor that
17 includes the:
18 (A) Highway construction and improvements to be financed
19 with the proceeds of such series of bonds;
20 (B) Estimated cost of the four-lane multilane highway
21 construction and improvements;
22 (C) Amount of bonds necessary to finance such four-lane
23 multilane highway construction and improvements; and
24 (D) Estimated amount of debt service required to pay the
25 bonds;
26
27 SECTION 7. Pursuant to the authority granted by Arkansas Constitution,
28 Article 5, § 1, Arkansas Constitution, Amendment 91, § 11(a)(1), concerning
29 the terms of bonds issued under Arkansas Constitution, Amendment 91, is
30 amended to read as follows:
31 (a)(1) The bonds shall be issued in series as provided for in this
32 section in amounts sufficient to finance all or part of the costs of four-
33 lane multilane highway construction and improvements provided under Section
34 10 of this amendment.
35
36 SECTION 8. Pursuant to the authority granted by Arkansas Constitution,
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1 Article 5, § 1, Arkansas Constitution, Amendment 91, § 15(a)(2), concerning
2 the general obligation status of bonds issued under Arkansas Constitution,
3 Amendment 91, is amended to read as follows:
4 (2) The bonds shall be payable from:
5 (A) The Arkansas Four-Lane Multilane Highway Construction
6 and Improvement Bond Account; and
7 (B) General revenues of the state as that term is defined
8 in the Revenue Stabilization Law, § 19-5-101 et seq.
9
10 SECTION 9. Pursuant to the authority granted by Arkansas Constitution,
11 Article 5, § 1, Arkansas Constitution, Amendment 91, § 16, is amended to read
12 as follows:
13 § 16. Sources of repayment.
14 (a) Without in any way limiting the general obligation of the state to
15 repay the bonds, the designated tax revenues are pledged to the payment of
16 the debt service on the bonds.
17 (b)(1) The Treasurer of State shall establish in the State Highway and
18 Transportation Department a special account known as the Arkansas Four-Lane
19 Multilane Highway Construction and Improvement Bond Account.
20 (2) The Treasurer of State shall deposit in the Arkansas Four-
21 Lane Multilane Highway Construction and Improvement Bond Account all
22 designated tax revenues.
23 (3) The commission may pledge to the repayment of the bonds the
24 full faith and credit of the state and may grant a lien upon the funds on
25 deposit in the Arkansas Four-Lane Multilane Highway Construction and
26 Improvement Bond Account.
27 (c)(1) On or before commencement of each fiscal year, the commission
28 in consultation with the chief fiscal officer shall determine the estimated
29 amount required for payment of debt service due on each series of bonds
30 issued and outstanding under this amendment during the fiscal year and shall
31 certify the estimated amount to the Treasurer of State.
32 (2) The Treasurer of State shall then make transfers from the
33 Arkansas Four-Lane Multilane Highway Construction and Improvement Bond
34 Account in the State Highway and Transportation Department Fund to the
35 trustees of each series of bonds, in such amounts and at such times as shall
36 be specified in the indentures, to:
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1 (A) Pay the maturing debt service on each series of bonds
2 issued and outstanding under this amendment; and
3 (B) Establish and maintain with the trustee for each
4 series of bonds a reserve or reserves for payment of debt service on each
5 series of bonds.
6 (d) The obligation to make transfers from the Arkansas Four-Lane
7 Multilane Highway Construction and Improvement Bond Account in the State
8 Highway and Transportation Department Fund for the payment of debt service
9 on, and, if applicable, a reserve for, each series of bonds is a first charge
10 against amounts on deposit.
11 (e) Fun